On federalism and constitutionality in Somalia: difficulties of “˜post-transitional’ institution building remain – By Mohamed Mubarak and Jason Mosley

Somali President Hassan Sheikh Mohamud presides over a country riven by political division and constitutional uncertainty.

Somalia is at a turning point in its modern history, particularly in the capital and large swathes of the south. The period following the collapse of Mohamed Siad Barre’s regime in 1991 is often referred to as “˜two decades’ of anarchy, occasionally with the qualifier “˜especially in the south.’ It is perhaps more useful, however, to consider Somalia’s recent past in terms of three “˜decades’.

Rather than drawing a line at 1991, the first “˜decade’ to consider is a period of intense violence from the mid-1980s — as insurgent movements picked up intensity along with the government’s reprisals — to the mid-1990s, by when the explosion of clan-linked violence had dwindled considerably.

In the northwest and northeast, the mid-to-late 1990s marked a turning point, with political entities emerging — Somaliland and Puntland — that have continued since then to consolidate and deepen their political institutions. Even in southern and central Somalia, the period from the mid-1990s until about 2004/05 — our second “˜decade’ — saw fairly stable control established by various militia groups in different parts of the country. Not uncontested, not without violence, but certainly of a lower order than the violent convulsions of the preceding decade.

However, from 2005, violent conflict escalated dramatically again in southern and central Somalia, as the government created by the 2004 Transitional Federal Charter attempted to establish itself in Mogadishu — amid an escalating conflict between warlords and Islamists for control. The emergence of the Islamic Courts Union administration in the capital led to the forceful intervention of Ethiopia to remove it and ensconce the Transitional Federal Government — triggering the insurgency of al-Shabaab, a radical militia within the Islamic Courts fold which chose not to flee the Ethiopian offensive. With violence continuing into the present, this period has been our third “˜decade’.

When the mandate of the TFG was brought to close in August 2012, amid intense regional and international pressure, many perceived a potential shift in the country’s fortunes — both inside and outside Somalia. The heady optimism of the initial “˜Somalia rising’ moment was fairly swiftly re-injected with weight and challenges of political reality. Nevertheless, there remained, and still remains, a sense that for southern and central Somalia, a different trajectory is possible.

Because of this sense of prospective opportunity, it is all the more important to move away from a view of Somalia as emerging from “˜two decades of conflict,’ and instead to put in the context of a longer view of Somali history the choices facing the authorities in Mogadishu and the range of sub-state political entities in the rest of Somalia — from the various clan militia, nascent local administrations, and emerging and aspirant regional states, to the established governments in Puntland and (even) Somaliland. Even the administration of al-Shabaab is ultimately a part of the political calculus.

And the question at the root of the Somali political project is now the question of federalism. In seeking answers, Somalis are viewing not only the past two decades since the collapse of the state, but also looking back to the experience of the previous Somali state itself. Somalis are seeking not merely to “˜restore’ institutions, but rather to build a new set of institutions. A pervasive sense of distrust in a strong central government, the legacy of the Barre era, informs the political negotiations — although this is magnified for many in a “˜regional’ context, and subdued for many directly linked to the administration in Mogadishu.

Politics versus institutions

For most participants in the political processes in Somalia, the shape of the debate over the country’s future boils down to two terms: “˜federalism’ and “˜constitutionality.’ However, it is clear from the experience of the first Somali Federal Government — under recently ejected Prime Minister Farah Abdi Shirdon — that neither term is consistently defined.

In large part, this is because the current political dispensation in Mogadishu is not the result of a natural process, but rather of a chaotic and sometimes half-hearted attempt by the international community to fix Somalia through support of transitional governments from the year 2000. The basis for Somalia’s problems was recognised as clans’ competition for political power; therefore starting in the year 2000, the basis for the Somali parliament and the cabinet became clan formations: 4 parts for the 4 large clan families and a half share for all the minority clans – this became known as the 4.5 formula.

It is worth noting that the Somali provisional constitution mentions the term “˜clan’ only once: in Article 11, which concerns equality of all citizens. In effect, this renders unconstitutional the 4.5 formula. However, without a constitutional court, this formula will continue to be used by Somalia’s government. This is a reflection of the continued primacy of political logic over any ideological commitment to “˜institution-building’, for its own sake.

While prone to abuse and despite evidence of large-scale selling of parliamentary seats by Somali elders, the 4.5 formula has proved the only way to create a representative government — i.e., a government in which a range of clan interests feel sufficiently represented to participate. This logic was most recently manifested in Puntland , where the groundwork for direct elections was abandoned in mid-2013, leading to a relatively stable process for selecting a parliament, which in early January selected a new president for the state.

Constitutional quandaries

However, returning to the federal level — at this stage, with the new government of Prime Minister Abdiweli Sheikh Ahmed having held its first cabinet meeting in late January, it is hoped that the federal government will now begin to make forward progress on its mandate for finalising the constitution and making the preparations necessary for general elections in 2016.

Even if expectations that direct elections will be feasible by then are low, the first 18 months of the four year parliamentary and presidential term have seen little progress on the general process of finalising the constitution, and putting it to a national referendum.

It is worth drawing attention to a range of constitutional issues facing politicians in Mogadishu and nationally, which are related to the relationship between Mogadishu and Somalia’s 18 regions and federal states. The constitution as currently understood creates a contradictory framework which has stymied, and could continue to undermine, progress on the national political project.

Problems with parliamentary structure

The Somali Federal Parliament is divided into two: the Upper House of Parliament, and the House of The People of the Federal Parliament. Currently, only the latter one exists; it is highly unlikely that the former will come into existence in the foreseeable future due to the current political climate.

This is because the members of the Upper House are supposed to be elected from the 18 regions of Somalia, and from the Federal Member States – whose formation is ongoing. To make matters more complicated, all Federal Member States must have the exact same number of representatives in the Upper House. This issue will be a problem for years to come, as some states may feel disadvantaged. For example, a state comprising 4 regions could well complain that a state of only 2 regions has the same representation in the Upper House.

Why does this matter? While the current parliament will continue to legislate, all the laws it passes may be challenged when and if elections do take place in 2016 and a truly representative government is in place. Without the existence of an Upper House of Parliament, the House of The People of Federal Parliament cannot pass a draft law according to Article 82 of the draft constitution.

Federal Member States

The Somali constitution allows the creation of federal member states, but applies stringent requirements that are extremely difficult for state builders to meet. For example, only two or more Somali regions uniting can form a Federal Member State.

While not seemingly problematic, consider the fact that very few clans are the sole occupants of one region, let alone in two or more regions. It would take tremendous amount of reconciliation to create states that transcend clan boundaries.

One such future problem lies in central Somalia, in Galgadud, where there are many competing rival clans who can barely agree on an administration for their region, let alone uniting with another region to form a state.

Regions that do not join a state are to be administered by the federal government for a maximum of two years, according to Article 48 (clause 2) of the constitution. This raises a question: what happens after two years if a region does not merge into a federal member state? With two years approaching since the constitution was provisionally adopted, the answer to this question is particularly important.

Problems with state creation

Even when multiple regions are almost homogenous and state creation is technically feasible, there are problems with the state creation process, caused in part by constitutional ambiguity.

The first clause of Article 49 of the constitution stipulates that it is the House of the People (the existing lower house of parliament) that shall determine the number and boundaries of the Federal Member States; however, clause 6 of the same article stipulates that two or more regions may voluntarily merge to form a Federal Member State.

In effect, it is saying two things: the first is that it is the federal government that has the power to draw the boundaries of federal member states; and secondly, that any two regions can unite and form a state.

This lack of clarity in who can form a state has contributed to a rush to create federal member states by politicians in southern Somalia.

In mid-2013, representatives from the three Jubba river valley regions (Lower and Middle Jubba, and Gedo) met in Kismayo and declared a Jubbaland state. They met with strong opposition from the federal government and some clan elders, Jubbaland reached a compromise deal with the federal government.

In Baidoa, there are currently two competing camps trying to create a South Western Somalia state. One camp wants to create a more technically feasible state comprised of Bay, Bakool, and Lower Shabelle regions; the other camp wants to add Gedo, Middle Jubba, and Lower Jubba and make SWS a 6-region state.

While this confusion is rooted in local politicians’ desire for power, the constitutional ambiguity and the federal government’s mild participation in federal state building has exacerbated the problem.

Sharing of natural resources

The only currently existing state that mostly fulfils the constitutional requirements for statehood is Puntland. While Puntland played a major role in the constitutional consultative process, its relations with the federal government worsened significantly since the adoption of the constitution.

The Puntland administration has signed contracts with foreign oil companies, and believes that it has a right to do so; on the other hand, the federal government maintains that it has the sole authority to award concessions for oil exploration.

The constitution does not help answer the question of how natural resources are to be shared, let alone who has the power to sign oil contracts. It does, however require that both sides negotiate a deal between them.

Article 44 of the constitution stipulates that “the allocation of natural resources of the Federal Republic of Somalia shall be negotiated by, and agreed upon, by the Federal Government and the Federal Member States in accordance with this constitution”.

However, even if Puntland and the federal government were to agree on how to share natural resources, the question of which regions are actually part of Puntland may in the future threaten any such deal.

For instance, Puntland lays claims to parts of Sool and Sanaag, and to a lesser extent, parts of Togdheer in the form of the Puntland-created Ayn region (people in Ayn have multiple loyalties: to Puntland, Khatumo, and Somaliland). Areas claimed by Puntland are also claimed by Somaliland and Khatumo state. Any deal signed between Puntland and the federal government will be challenged by the latter two.

Conclusion

In essence, problems with the constitution and its implementation reflect the top down approach of institution building in Mogadishu — an approach adopted of necessity by the international community which bankrolled the TFG and constitutional drafting process. This “˜centralised’ support is hitting up against the reality that local and regional political processes are more substantive.

The messy and violent way that the Jubbaland state was first formed, then came into conflict with Mogadishu and was eventually pushed into a compromise with the federal government under Ethiopian mediation has established an important precedent. That process underlines both the fact that Mogadishu does not have the capacity to drive state formation, and the fact that some kind of political compromise will be needed between the federal government and future Member States, as well.

The federal government has to recognise the existing problems with the constitution and take steps to fix them. Not doing so now will lead to continued problems with federal state creation, which may ultimately lead to a return of hostilities between rival states that have overlapping territories.

Mohamed Mubarak, a political and security analyst, is the founder of anti-corruption NGO Marqaati (Marqaati.org), based in Mogadishu @somalianalyst

Jason Mosley is a Research Associate at the African Studies Centre, Oxford University @africaupdate

2 comments

Trying to follow Somalia politics reminds of what Jerry Seinfeld said about marriage: Marriage is like a game of chess except the board is flowing water, the pieces are made of smoke and no move you make will have any effect on the outcome.

It’s just exhausting.

What I head from Somali friends tells me that … clan relationships are so intense, immediate, and preoccupying that there seem to be no more space left to build national consensus.

Surely, there is a need for some constitutional framework and institutional structures that reflect the realities and quandaries presented in this article and which streamlines trade-offs among clan egocentrism, the national cause, and economic and social justice among communities. Above all, Somalia needs a leadership that places the creation of a peaceful and prosperous Somalia above petty personal and clan interests and which has the ability to engage with all factions and regional administrations with the sole objective and inspiration of restoring peace and stability and establishing good governance.